Wyatt v. Chambers

• Decision Date: 23 December 1915
• Docket Number: (No. 7029.)
• Citation: 182 S.W. 16
• Parties: WYATT v. CHAMBERS.
• Court: Texas Court of Appeals

182 S.W. 16

WYATT v. CHAMBERS.

(No. 7029.)

Court of Civil Appeals of Texas. Galveston.

December 23, 1915.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by P. B. Wyatt, administrator, against W. J. Chambers, who died pending action, which was then defended by his administratrix. From judgment for defendant, plaintiff appeals. Reversed and remanded.

A. C. Van Velzer and Fred R. Switzer, both of Houston, for appellant. W. H. Ward and Hortense Ward, both of Houston, for appellee.

McMEANS, J.

Catherine Williams brought this suit against W. J. Chambers to set aside a deed executed by her to W. J. Chambers conveying lots 4 and 5 in block 49 in the Baker addition to the city of Houston. She died before a trial was had, and P. B. Wyatt was appointed administrator of her estate, and the suit is prosecuted by him in that capacity. It is alleged in plaintiff's petition that lot 4 was fraudulently inserted in said deed without her knowledge or consent, and that she could not read or write, and that she did not intend to convey lot 4; and that defendant promised to pay to Catherine Williams for lot 5 the sum of $700 in cash, and to support her as long as she lived, by providing her with the necessaries of life, and also to pay all back taxes then due upon the property; that defendant did not intend to pay her anything therefor at the time he made the promise, but made the promise for the sole purpose of decoying her into signing the deed; that she believed the promise, and with that belief she executed and deliverd the deed, and that no money was ever paid her for said conveyance.

Pending a trial Chambers died, and the suit was defended by his administratrix, who pleaded that the consideration for the execution of the deed was only that the said Chambers should pay the taxes owing upon the property, repair the house upon the property, in which Catherine Williams lived, and permit her to have a home there for the balance of her life; that he fully performed his agreement with her by paying the taxes, amounting to several hundred dollars, and by furnishing a home to her during her lifetime; specially denied that there ever was an agreement to pay her $700, or any cash sum; specially denied that lot 4 was inserted in the deed without the knowledge and consent of Catherine Williams, but averred that, on the contrary, the same was included in the sale.

A trial before a jury resulted in a verdict and judgment for defendant, and the plaintiff has appealed.

Upon the trial the plaintiff introduced testimony which, if given credence by the jury, would have warranted a finding for plaintiff upon the issues presented by his pleadings. On the other hand, the defendant introduced testimony, which, being believed by the jury, warranted their finding on the issues raised by her pleadings. The verdict is not questioned upon this appeal by any assignment of error challenging the sufficiency of the evidence to sustain the same, but the assignments presented are predicated upon alleged prejudicial errors in the court's charge, the refusal to give a certain charge requested by plaintiff, and upon the exclusion of certain testimony offered by the plaintiff upon the trial.

The fifth assignment complains of the refusal of the court to give to the jury the following special charge requested by plaintiff:

"You are instructed that if W. J. Chambers at the time he secured said deed from Catherine Williams, dated October 3, 1907, promised and represented to her (if you find from the preponderance of the evidence that he made such promises and representations) that he would pay her the sum of $700 cash upon her execution of the deed to him of the corner lot No. 5, and did so with the design of cheating and deceiving said Catherine Williams and had the intention at the time of not paying the said $700 at that time or any other time in the future, but merely used such promises and representations, if any, as a false pretense, if any, to induce the said Catherine Williams to execute said deed, and if the said Catherine Williams relied upon such promises and representations at the time, if any, and executed the said deed, and would not have executed the said deed had such promises and representations, if any, not been made to her, and if she had not believed the same, if you find she did believe same, and if you find that the said $700 was not paid, then you will find for the plaintiff for both of said lots."

Appellant, under his first assignment of error, advances the following proposition:

"Where a proposed grantee in order to procure a deed to real estate made promises and representations to the grantor that he would pay her $700 in cash upon the delivery of the deed, and the grantor relying upon such promises and representations executed and delivered the deed to the grantee, when at the time of making said promises and representations said grantee made the same for the purpose of defrauding and deceiving the grantor, and had the intention at the time of not paying the promised cash payment, and never did pay the same, the grantee was guilty of such fraud as will authorize the cancellation of the deed."

The above proposition is an accurate statement of the law as we understand it. While a failure to keep a promise to perform some act in the future will not be regarded as fraud in legal acceptation, although the promise is the consideration upon which a deed is executed and the failure to keep it is wholly without excuse, there is a well-recognized exception to this rule where the representations and promises are made for the purpose of defrauding and deceiving, and without any intention at the time the same are made of performing the same. This exception is recognized in Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, Railway v. Smith, 98 Tex. 553, 86 S. W. 322, May v. Cearley, 138 S. W. 165, and ...